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United States v. Piceno

United States District Court, Tenth Circuit

September 17, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
MAYRA PICENO and JOSE PICENO, Defendants

MEMORANDUM AND ORDER

Monti L. Belot UNITED STATES DISTRICT JUDGE

This case comes before the court on defendant Mayra Piceno’s motion to suppress. (Doc. 38). The motion has been fully briefed and is ripe for decision. (Docs. 46, 51). The court held an evidentiary hearing on September 4, 2013. The motion is granted for the reasons stated herein.

I. Facts

On January 29, 2013, the Picenos were indicted on charges of money laundering. Jose Piceno was additionally charged with conspiracy to distribute a controlled substance.[1] Julian Soriano, a Drug Enforcement Agency (DEA) special agent in California, received a call from a DEA agent in Kansas concerning the investigation of the Picenos, who reside in Newman, California. Soriano was called to assist with the execution of the outstanding federal arrest warrants for the Picenos.[2]

Soriano and other DEA agents established surveillance around the Picenos’ home, 1319 Crabapple, in early February. Soriano confirmed that the Picenos lived at the residence. DEA performed a threat matrix to determine whether the use of a SWAT team would be necessary to execute the arrest warrants. The threat matrix was determined to be low and therefore, a SWAT team was not used.

On February 6, in the early hours of the morning, sixteen agents proceeded to the area of the Picenos’ home to participate in the execution of the arrest warrants.[3] The sixteen agents arrived in approximately fourteen vehicles and positioned themselves in different locations around the area of the Picenos’ home.

Around 7 o’clock in the morning, the agents closest to the home observed Jose Piceno leave in a vehicle with a young child. Two undercover vehicles followed Jose Piceno and observed him drop off the child at a school within a few blocks from the home. After dropping off the child, a marked unit stopped Jose Piceno. There were two agents in the marked unit and they placed Jose Piceno under arrest. After the arrest, the remaining agents, with the exception of a team that was watching the home, met to discuss the execution of Mayra Piceno’s arrest warrant. The agents also changed into their tactical gear and then returned to the home. The marked vehicle parked in front of the home and Jose Piceno remained handcuffed, in the back seat.

At approximately 8:30, Soriano and another agent approached the front door wearing tactical gear which said DEA in large letters. Both agents had their guns holstered. Two undercover agents were located next to the garage and wore face masks in addition to the tactical gear. Two agents had assault rifles and were also positioned by the garage.[4]

Soriano knocked on the door and Mayra Piceno answered the door carrying a baby. Mayra was wearing shorts and a tank top and did not have on shoes. The baby was in pajamas and did not have a blanket. Another small child was inside the home and sleeping in a bedroom. Soriano confirmed Mayra’s identity and told her that there was an outstanding warrant for her arrest. Soriano then told her that she was under arrest and placed her in handcuffs. At this time, Mayra could see Jose positioned inside the police car. Mayra also observed other agents in the yard. An agent came up the steps and took the baby from Mayra.

Soriano then asked Mayra if he had consent to search her home for other individuals.[5] At least ten agents approached the home, with their weapons drawn, to execute the initial entry. The agents located the small child in the master bedroom and were inside the home for an extended period of time. During this time, Mayra and the baby were outside in the cold. Mayra asked for a blanket for the baby on several occasions. After ten minutes, the baby was placed inside a vehicle and given a blanket. Mayra was not given any additional clothing or shoes for a majority of the time she was outside.

At approximately 9:10, the Picenos and the baby were brought inside the home. The Picenos remained in handcuffs. The baby was crying and fussy.[6] Soriano brought Mayra Piceno into the kitchen and told her that he needed her to sign the written consent and stated that she had already given consent to search when they were outside the home. Soriano uncuffed one hand in order for Mayra to execute the consent to search form. The consent was written in Spanish, a language Mayra understood. Mayra did not ask any questions and signed the form which authorized the agents to search the home and three vehicles. Soriano asked Jose if the house belonged to him as well. Jose stated that the house belonged to Mayra and another family member. Soriano did not ask Jose for his consent after concluding that it was not necessary to receive his consent.

During the search, drug-related items were seized. The Picenos remained handcuffed and were taken to jail at approximately 10:30. The agents called Child Protection Services and waited for a social worker to do an evaluation and determine a family member who could pick up the children.

Mayra Piceno moves to suppress the evidence seized from the home on February 6 on the basis that she did not voluntarily ...


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